Summary Calendar UNITED STATES OF AMERICA v. Cristobal Hernandez-Guido

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40757
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CRISTOBAL HERNANDEZ-GUIDO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-408-ALL
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Cristobal Hernandez-Guido appeals his conviction and sentence for illegal
reentry following deportation in violation of 8 U.S.C. § 1326(b). He argues that
the district court erred in assessing a criminal history point for his prior
misdemeanor conviction for attaching a tag not assigned in violation of FLA.
STAT. ANN. § 320.261. Under that section, a person commits an offense by
“knowingly attach[ing] to any motor vehicle . . . any registration license plate,
. . . which . . . was not issued and assigned or lawfully transferred to such
United States Court of Appeals
Fifth Circuit
F I L E D
May 2, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40757
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vehicle.” Id. Hernandez-Guido was convicted of that offense when he was
stopped in Venice, Florida while driving a vehicle with a license plate that
belonged to another car.
In determining a defendant’s criminal history score, “[s]entences for
misdemeanor and petty offenses are counted,” except for offenses listed under
U.S.S.G. § 4A1.2(c)(1) and “offenses similar to them.” See § 4A1.2(c)(1). In
determining whether a prior offense is “similar” to a listed offense in
§ 4A1.2(c)(1), this court employs a “common sense approach which relies on all
possible factors of similarity.” United States v. Hardeman, 933 F.2d 278, 281
(5th Cir. 1991).
Hernandez-Guido argues that his offense of attaching a tag not assigned
is similar to “[d]riving without a license or with a revoked or suspended license,”
an offense listed in § 4A1.2(c)(1) , or failing to maintain automobile insurance,
the offense we concluded should not be counted under § 4A1.2(c)(1) in
Hardeman. We disagree. The punishments for Hernandez-Guido’s offense and
the offense of driving without a license or with a revoked or suspended licence
do have, under Florida law, similar punishments. See FLA. ST. ANN. §§ 320.261
and 322.34(2)(a). In addition, Hernandez-Guido’s sentence of six months
probation indicates that the sentencing court did not perceive his offense as very
serious.
Nevertheless, to commit the offense of attaching a tag not assigned,
Hernandez-Guido had to knowingly attach a tag to a vehicle that was not
assigned, issued, or lawfully transferred to that vehicle. See FLA. ST. ANN.
§ 320.261. Because Hernandez-Guido had to expend resources to locate a tag
belonging to one vehicle and affix it to another vehicle, his offense involved a
greater degree of culpability and likelihood of future criminal conduct than the
offenses of driving without a license, driving with a revoked or suspended
license, and failing to maintain automobile insurance. See Hardeman, 933 F.2d

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at 281. Accordingly, the district court did not err in assessing Hernandez-Guido
a criminal history point for his conviction for attaching a tag not assigned. Id.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Hernandez-Guido
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008). Hernandez-Guido’s conviction and sentence are AFFIRMED.

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